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The Week In Torts – Cases from July 15, 2022
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FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 28
CASES FROM THE WEEK JULY 15, 2022
SUPREME COURT UPDATES RULES REGARDING REMOTE COURT PROCEEDINGS IN RE: AMENDMENTS TO FLORIDA RULES OF CIVIL PROCEDURE, ET AL.
47 Fla. L. Weekly S187 (Fla. Jul. 14, 2022):
Following the onset of the COVID-19 pandemic in 2020, the Florida Supreme Court established a workgroup to develop findings and recommendations to address court operations in a manner that protects health and safety, as well as various phases of the pandemic.
The committee substantially rewrote Rule 2.530 defining communication technology.
The Rule now allows court officials to authorize the use of Zoom upon a party’s written motion, or at the discretion of a court official. A party may object in writing within 10 days or within a period directed by the court official, but the court official is required to grant a motion to use communication technology for non-evidentiary proceedings scheduled for 30 minutes or less “absent good cause to deny it.”
Under the amendments to Rule 2.530, a party must file a motion seeking to present testimony through communication technology, must set forth good cause, and must specify whether each party consents to the form requested.
The rule also allows prospective jurors to participate through communication technology for determining whether they will be disqualified or excused or have their service postponed. Prospective jurors and empaneled jurors may participate in trials through audio-video communication technology when authorized by another rule of procedure.
The Court amended Rule 2.516 to require non-represented parties to designate an e-mail address for service, unless the party is in custody or excused by the clerk of court for lack of an email or regular access to the internet.
New Rule 1.430(d) (juror participation through audio-video communication technology) allows prospective jurors to participate in voir dire and trial through stipulation by the parties and authorized by the court.
Depositions can be taken via communication technology under Rule 1.310 without leave of court if stipulated by the parties, and the use of communication technologies authorized in mediation and arbitration by stipulation or court order.
Spoiler alert, Zoom is here to stay.
A TREATING PHYSICIAN’S FAILURE TO COMPLY WITH RELEVANT RECORD KEEPING PROVISIONS DOES NOT MAKE AN OTHERWISE REASONABLE, RELATED, AND MEDICALLY NECESSARY SERVICE OR TREATMENT “UNLAWFUL” AS DEFINED BY SECTION 627.736(5)(b)(1)(b)
United Automobile Insurance Co. v. Central Therapy Center, Inc., 47 Fla. L. Weekly D1449 (Fla. 3rd DCA Jul. 6, 2022):
The court upheld the summary judgment entered in favor of the provider, where the insurer had conceded that the physiotherapy treatments were medically reasonable and necessary.
While the insurer attempted to deny the claim based on the treating physician’s failure to comply with the law’s record keeping requirements governing the licensing of chiropractors, such failings do not provide a basis for denial of a claim when the insurer has conceded to the necessity and relatedness of the treatment.
OPPOSING COUNSEL’S BILLING RECORDS ARE RELEVANT TO THE ISSUE OF THE REASONABLENESS OF TIME EXPENDED IN LITIGATING A CLAIM FOR ATTORNEY’S FEES
Beacon Park Phase Homeowners Assoc. v. Eagle Vista Equities, LLC, 47 Fla. L. Weekly D1471 (Fla. 5th DCA Jul. 8, 2022):
Petitioner sought certiorari review of an order granting a motion to compel production for “any and all statements, bills, and invoices for legal services provided on … behalf [of Beacon Park] in this action … includ[ing] … the corresponding hours and hourly rates charged for each entry.”
The defendant objected to the request for production of these records based on relevancy and attorney-client privilege. Defendant did submit a document stating that its counsel had expended 133.6 hours in the proceedings at a rate of $240.00 per hour. The plaintiff moved to compel the actual invoices of statements, which the trial court granted in an unelaborated order.
The defendant sought certiorari, arguing that the order did not adequately protect attorney-client privilege communications and that the information sought was not relevant. The court cited Paton v. GEICO, 190 So.3d 1047 (Fla. 2016), where the Florida Supreme Court determined that billing records of opposing counsel are relevant to the issue of reasonableness of the time expended on a claim for attorney’s fees, and that discovery of those fees is proper when the fees are contested.
There is no categorical rule that all information contained in an attorney’s billing records is privileged. Even though the trial court in this case did not rule that possibly privileged information such as mental impressions or opinions of counsel should be redacted, the defendant failed to make any request for such redactions. The court denied cert., and provided a roadmap for addressing requests for billing records in attorney’s fees cases.
NO PERSONAL JURISDICTION OVER A FOREIGN CORPORATION PAID TO INSURE PROPERTY THAT IT DID NOT HOLD AN INTEREST IN A TRIP AND FALL CASE
Hudson Capital Properties IV, LLC v. IECHO, 47 Fla. L. Weekly D1475 (Fla. 2nd DCA Jul. 8, 2022):
Plaintiff sued for injuries he sustained when tripping over a “worn step” at his rented apartment. He sued two entities alleging negligence, but the ownership of the plaintiff’s rented apartment was not so clear.
The defendant submitted the affidavit and deposition testimony of its general counsel testifying that he had never owned, possessed, or controlled any real property in Florida, never conducted any business in Florida, had no agents, employees or offices, and is not a managing member or a member of the co-defendant. According to the general counsel, the co-defendant was the mere title owner, and the defendant had only an indirect interest through a very complex real estate financing portfolio.
Co-defendant’s representative confirmed that the appellant was not an owner of the apartment complex and that there were no management or contractual arrangements between them.
The plaintiff pointed to deposition transcripts where the defendant did seem to have an ownership interest in the co-defendant, and had hired co-defendant to manage the apartment property. Appellant had actually received financial and accounting statements in connection with its interest in co-defendant, and had procured liability insurance for the property.
However, those factors did not meet jurisdictional requirements. The court looked first to the Long Arm Statute, and agreed that section 48.193(1)(a) does contain a statement confirming long arm jurisdiction if the defendant has contracted to insure property. However, the court found that upon closer examination, appellant was not the property’s insurer, and its mere purchase of the policy did not bring it within the ambit of that statute.
Not only did the court find that the first prong of personal jurisdiction had failed (a basis under the Long Arm Statute), the trial court made no findings as to the second prong – sufficient minimum contacts– such that the appellant should have reasonably anticipated being haled into court. Because the evidence did not support the exercise of personal jurisdiction, the trial court reversed, and dismissed the appellant/defendant.